Mentally impaired accused

Contributed by ShaylaStrapps and LukeCassidy and current to 27 July 2018

Persons accused of a criminal offence who suffer from a significant mental impairment may be managed under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (CLMIA). CLMIA is mainly concerned with how to treat mentally impaired accused persons who are either refused bail, unfit to stand trial or found not guilty due to unsoundness of mind (also known as the insanity defence).

Application of CLMIA

Who CLMIA Applies To

CLMIA will potentially apply to any person with either a mental illness or mental impairment. Mental illness has two definitions under CLMIA. The first definition is the same as the under the Mental Health Act. However, when considering fitness to stand trial, mental illness is defined as:

“an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.”

This definition seeks to make a distinction between an organic mental illness and conditions caused by drug or alcohol abuse. See ‘Fitness to Stand Trial’ below for more information.

Mental impairment under CLMIA means an intellectual disability, mental illness, brain damage or senility. Note that simply having a mental illness or mental impairment will not mean that the provisions will automatically apply. It is when that mental illness or impairment may interfere with legal proceedings that the power may be used.

Hospital Orders

When any accused person is taken in to police custody, whether they can be released on bail must be considered. Bail can be considered by both the police upon making the arrest or by a judicial officer such as a Magistrate or Judge. Where a mentally impaired accused person is denied bail by a judicial officer, the court then has the power to make a hospital order.

A hospital order is an order that the accused person be taken and detained in an authorised hospital and examined by a psychiatrist. The majority of accused under hospital orders are sent to the Frankland Centre on the grounds of Graylands Hospital.

The effect of a hospital order is the same as when a person is referred for assessment under the Mental Health Act. If the psychiatrist examining the accused person is satisfied that they meet the criteria for involuntary treatment, they can be detained as an involuntary patient. Otherwise the person will be kept in custody at prison. Regardless, the accused person will be brought back before the court, by video-link if still detained at hospital, within 7 days of the order being made. The psychiatrist will prepare a report for the court outlining the accused person’s mental state.

Fitness to Stand Trial

Every accused person is presumed to be mentally fit to stand trial until the opposite conclusion is found. The issue can be raised by either the prosecution, defence or the judicial officer themselves at any time before or during the trial of an accused.

The decision of whether a person is mentally fit to stand trial is decided by the judicial officer. The judicial officer may order the accused by examined by a psychiatrist and that the psychiatrist produce a report to assess the accused’s fitness. Both the prosecutor and accused can appeal against a judicial officer’s decision on whether a person is fit to stand trial.

A person will be found not mentally fit to stand trial if, because of a mental illness or mental impairment, the accused is:

a) unable to understand the nature of the charge; or

b) unable to understand the requirement to plead to the charge or the effect of a plea; or

c) unable to understand the purpose of a trial; or

d) unable to understand or exercise the right to challenge jurors; or

e) unable to follow the course of the trial; or

f) unable to understand the substantial effect of evidence presented by the prosecution in the trial; or

g) unable to properly defend the charge.

If the court decides that the accused is not fit to stand trial, it must determine whether or not the accused will become fit within 6 months. The court can adjourn the matter if more time is needed to consider the question.

If the court determines that the accused will not be fit to stand trial within 6 months, then the court will have two options to deal with the accused. The court can either release the accused or make a custody order. See ‘Custody Orders’ below for more information.

Acquittal on Unsoundness of Mind (Insanity Defence)

A person is not criminally responsible for acts committed if they are in such a state of mental impairment that they are:
  • Unable to understand what they are doing; or
  • Unable to control their actions; or
  • Unable to know that they should not do that act. The court must be satisfied that the accused meets one of the above criteria at the time of the offence before acquitting a person for unsoundness of mind. The court will require psychiatric reports to establish the accused’s mental state at the time of the offence.

Similar to a finding of unfitness to stand trial, following an acquittal due to unsoundness of mind, the court has several options to deal with the accused:
  1. Release the accused unconditionally; or
  2. Make one of the following community based orders:
a. Conditional Release Order;
b. Community Based Order;
c. Intensive Supervision Order; or
d. Make a custody order

While the accused is not convicted of the charge, if acquitted due to unsoundness of mind they may still receive one of the above sentences. An accused cannot receive a community based order unless the offence was of a nature that the court could have imposed the order if the accused had been found guilty.

In some circumstances the court is required to make a custody order if the accused is acquitted on account of unsoundness of mind. If the accused is acquitted in a superior court (i.e. a court other than the Magistrates Court) of an offence listed in Schedule 1 of CLMIA, then the court must make a custody order. Schedule 1 offences include:
  • Murder;
  • Manslaughter;
  • Grievous bodily harm;
  • Assaults Occasioning Bodily Harm;
  • Serious Assaults;
  • Sexual Penetration without consent
  • Indecent Assaults;
  • Robbery; and
  • Criminal Damage.

Custody Orders

A custody order is an order made by the court that the accused person be detained for an indefinite period. A mentally impaired accused under a custody order can be detained in one of four places:
  1. An authorised hospital;
  2. A declared place;
  3. A detention centre; or
  4. A prison.
Within 5 days of the custody order being made, it must be determined where the accused person is to be detained. The place of custody may be changed at any time by the Mentally Impaired Accused Review Board. Please see Mentally Impaired Accused Review Board below for more information.

An authorised hospital has the same meaning as it does with regards to hospital orders. An accused should only be detained in a hospital if they meet the following criteria:
  1. The accused has a mental illness requiring treatment; and
  2. Because of the mental illness there is a risk to the health and safety of the accused or others; and
  3. The accused does not have the capacity to consent to treatment; and
  4. The treatment can only be provided in hospital.
As with hospital orders, a mentally impaired accused detained in hospital will generally be detained at the Frankland Centre.

A declared place is any place declared to be suitable by the Governor. An accused will only be detained in a declared place if:
  1. The accused is a person with a disability and the main reason for that disability is not mental illness; and
  2. The accused is 16 years of age; and
  3. Regard is had to the risk to the community.
At the time of writing, the only declared place in WA is the Bennett Brook Disability Justice Centre.

A detention centre is a place declared to be so by the Minister. A person must be between 10 and 17 years old to be detained in a detention centre. At the time of writing, the only declared detention centre is the Banksia Hill Detention Centre.

Leave of Absence

There are broadly four stages of detention under a custody order:
  1. Full time detention;
  2. Detention with leave of absence;
  3. Conditional Release; and
  4. Unconditional release.
A leave of absence is an order by the Governor, or the MIARB if the Governor gives them the power to do so, that the accused be given leave of absence from the place of detention for a period not over 14 days at a time. Before a leave of absence order can be made, the Governor or MIARB must consider the degree of risk the accused present to the community and the likelihood the accused would comply.

A leave of absence order will often have conditions attached. Should the mentally impaired accused person breach those orders, the leave of absence order may be cancelled and the accused returned to full time detention. Examples of typical conditions include:
  • To undergo treatment at a specific time and place;
  • To reside at a specific address;
  • Not to contact particular people;
  • Not to consume illicit drugs and alcohol; and
  • To comply with all lawful directions of a supervising officer.

Release from a Custody Order

An accused person can only be discharged from a custody order if the Governor makes a release order. The Governor is able to do this at any time during the custody order. There are two types of release orders the Governor can make: a conditional release order and an unconditional release order.

A conditional release order allows for the accused person to be released with conditions for an indefinite or set period determined by the Governor. These conditions can be amended or cancelled at any time during the period of the order. The types of conditions that can be imposed are broad and not limited, typically they would be similar to those imposed under a leave of absence order. If the accused person breaches a condition, the conditional release order may be cancelled and the accused returned to custody. An accused person released under a conditional release order is formally discharged from the custody order when the conditions no longer apply.

An unconditional release order means that the accused person is released without any conditions attached. Once the accused is released, they are formally discharged from the custody order and are no longer subject to its conditions.

Mentally Impaired Accused Review Board

The Mentally Impaired Accused Review Board (MIARB) is responsible for reviewing a person’s status as a mentally impaired accused. The MIARB looks to impose the least restriction on a person’s freedom of choice and movement while also considering the need to protect the health and safety of the accused or any other person.

The MIARB generally does not have the power to make orders related to a mentally impaired accused’s custody. However, they can be given the power to do so by the Governor. Otherwise, the MIARB’s main role is to make recommendations to the Governor regarding a mentally impaired accused person’s detention and suitability for either leaves of absence or release.

A MIARB review will involve the following people:
  • Chairperson of the Prisoners Review Board;
  • Deputy Chairperson;
  • Representative from Disability Service Commission;
  • Community members;
  • Psychiatrist; and
  • Psychologist.
The treating psychiatrist will prepare a report to the MIARB on the accused person’s progress. The report addresses the several factors set out in CLMIA, such as:
  • Degree of risk the accused presents to others;
  • Likelihood that accused will comply with any conditions;
  • Extent that the accused’s mental impairment will benefit from treatment;
  • Likelihood accused can take care of their day to day needs; and
  • Any statement from victims of alleged offence.
The accused person has the right to be represented during the review and can make submissions to the MIARB regarding their order. After the review, the MIARB can either make a leave of absence order if given the power to do so or make a recommendation to the Governor.

Start Court

If an accused person suffers from a mental illness but does not fall under the scope of CLMIA, they may be eligible to participate in the Start Court. The Start Court is a specialist court that operates out of the Perth Magistrates Court that focuses on assisting accused persons with mental health issues. The aim of the Start Court program is to:
  • Improve an accused person’s health and wellbeing;
  • Improve community safety;
  • Help link participants to mental health support services; and
  • Reduce any further offending.
A person can be referred to the Start Court from any Magistrates court. The application can be made from the accused person themselves, the prosecutor or by the Magistrate of their own accord. The court consists of a dedicated team include clinical nurses, a psychiatrist, community corrections officers, a dedicated magistrate, judicial support officer and court orderly. A Legal Aid duty lawyer is available for every court appearance.

To be eligible to participate in Start Court, the participant must:
  • Have a mental health condition;
  • Accept that they committed the offence(s) (i.e. enter a guilty plea); and
  • Be eligible for bail.
The program lasts for approximately 6 months. In that time the court will provide various supports that the participant can make use of, including referrals to psychiatrists, psychologists, drug counselling and peer supports.

Participation in the program is voluntary and the accused can exit the program at any stage. The Magistrate may also exit a participant from the program if they consider that the participant is not fulfilling their obligations. Once a participant reaches the end of the program they will be sentenced by the Magistrate. Their involvement with Start Court will be considered in their final sentence. Successful participants are graduated from the program and may receive additional supports even following their sentence.

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